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Bryant v. Noel L. Silverman, Esq.

United States District Court, S.D. New York

March 6, 2017

ANNE BRYANT, Plaintiff,
v.
NOEL L. SILVERMAN, ESQ. et at, Defendants.

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          HONORABLE PAUL A. CROTTY, United States District Judge

         Pro se plaintiff Anne Bryant ("Bryant" or "Plaintiff) claims that her former attorney, Patrick J. Monaghan ("Monaghan" or "Defendant"), engaged in fraudulent misrepresentation; fraudulent concealment; attorney deceit in violation of New York Judiciary Law ("NY. Judiciary Law") § 487; fraud on the court; and malpractice.[1] ECF 23.

         On March 22, 2016, Monaghan moved to dismiss the action with prejudice for failure to comply with Fed R. Civ. P. 8(a)(d) and 9(b), and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); or alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56. ECF 25.

         On December 16, 2016, Magistrate Judge Henry Pitman issued his thorough Report and Recommendation (the "R&R"), recommending (1) dismissal of Bryant's claims alleging common law fraud, violation of N.Y. Judiciary Law § 487, and fraud on the court for failure to satisfy the heightened pleading requirements of Fed.R.Civ.P. 9(b); (2) grant of summary judgment dismissing the legal malpractice claim to the extent it is predicated on (a) Monaghan's alleged failure to discover and inform Plaintiff and the courts that the entity "Kinder Bryant, & Aquino Ltd." ("KB&A") had not been renamed "Kinder & Bryant" ("K&B") and (b) Monaghan's alleged withholding of documents after Monaghan withdrew from representing Plaintiff in connection with a 2000 New York state court action (the "2000 N.Y.S. Action"); and (3) denial of Monaghan's motion in all other respects. ECF 65 at 62-63. The R&R recommends that, in light of Bryant's pro se status and the fact that its recommendation to dismiss her common law fraud, N.Y. Judiciary Law § 487, and fraud on the court claims is based on her failure to allege these claims in the proper form, Bryant be afforded one final opportunity to state these claims properly and that she be directed to file a Second Amended Complaint within 30 days of this Opinion & Order. Id.

         On January 10, 2017, both Bryant and Monaghan filed objections to the R&R, ECF 68, 69.[2] Bryant filed a reply to Monaghan's objections on January 24, 2017. ECF 72.

         Additionally, Bryant submitted a "solicitation" requesting this Court's recusal on January 20, 2017. ECF 71. Monaghan opposed the request on February 3, 2017. ECF 73.

         The Court has reviewed the objections, and for the reasons described below, ADOPTS the R&R in full; and DENIES Bryant's recusal request.

         LEGAL STANDARDS

         I. Review of Objections

         The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where a party makes a timely written objection, the district court must review the contested issues de novo. See Arista Records LLC v. Doe, 604 F.3d 110, 116 (2d Cir. 2010). "However, where a party does not submit a timely objection, 'a district court need only satisfy itself that there is no clear error on the face of the record.'" Martinson v. United States Parole Comm 'n, No. 02-CV-4913, 2005 WL 1309054, at *3 (S.D.N.Y. June 1, 2005).

         "To the extent, however, that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at * 1 (S.D.N.Y. July 21, 2008). "[E]ven &pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a 'second bite at the apple' by simply relitigating a prior argument." Id.

         II. Summary Judgment[3]

         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, " Fed.R.Civ.P. 56(a), and where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Smith v. Cnty. of Suffolk, 716 F.3d 114, 121 (2d Cir. 2015) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The Court "resolve[s] all ambiguities and draw[s] all reasonable inferences in the light most favorable to the nonmoving party." Summa v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013). Pro se litigants' submissions "must be construed liberally and interpreted 'to raise the strongest argument they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). However, "a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir, 2010) (internal citations omitted).

         III. Fed.R.Civ.P. 9(b)

         Fed R. Civ. P. 9(b) requires a plaintiff to "state with particularity the circumstances constituting fraud or mistake." A complaint alleging fraud must "(1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent." Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 187 (2d Cir. 2004) (citations and quotations omitted). The facts must "give rise to a strong inference of fraudulent intent, " and cannot be based "on speculation and conclusory allegations." Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (citations and quotations omitted).

         The Court agrees with the R&R's determination that this heightened pleading standard also applies to Bryant's NY. Judiciary Law § 487 claim, as it does to Bryant's common law fraud and fraud on the court claims. See R&R at 10-11.

         R&R ANALYSIS[4]

         I. Bryant's Objections

         Bryant makes three specific objections.[5] First, regarding the N.Y. Judiciary Law § 487 claim, Bryant objects to the R&R's finding that she has not alleged any specific facts inferring that Monaghan intended to deceive the court or any party. ECF 69 at 2; see R&R at 40. Second, Bryant objects to the R&R's finding of no fraud on the court based on the absence of any particularly-alleged facts showing that Monaghan "acted with an intent to defraud, " R&R at 44, on the grounds that the R&R "disregards important facts." ECF 69 at 5. Third, Bryant objects to the R&R's finding of no ...


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